Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Frank E. v. State (9/26/2003) sp-5741

Frank E. v. State (9/26/2003) sp-5741

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

FRANK E.,                                         )
                              )    Supreme Court No. S-10707
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-00-108/109/110 CP
                              )
STATE OF ALASKA,                        )    O P I N I O N
DEPARTMENT OF HEALTH &        )
SOCIAL SERVICES, DIVISION          )    [No. 5741 - September 26,
                                   2003]
OF FAMILY & YOUTH SERVICES,   )
                              )
             Appellee.                  )
________________________________)

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Eric Smith, Judge.

          Appearances:   J. Randall Luffberry,  Palmer,
          for    Appellant.    Michael   G.   Hotchkin,
          Assistant  Attorney General, Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for  Appellee.   Erica Kracker,  Kracker  Law
          Office, Palmer, Guardian Ad Litem.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.
          MATTHEWS, Justice, concurring.

I.   INTRODUCTION

          The   superior  court  terminated  a  fathers  parental

rights.   The father argues  that the court erred in (1)  finding

that  the  state had made reasonable efforts to reunify him  with

his  children  and (2) finding that termination served  the  best

interests  of his children.  Because the superior court  did  not

err  in  finding  that  the  state made reasonable  reunification

efforts and in considering the best interests of the children, we

affirm.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Frank  E.1 is the father of the three children involved

in  this case:  daughter Beth E., born in 1995; son Frank E. Jr.,

born  in 1997; and daughter Brianna E., born in 1999.  Frank  and

his  wife  Ann E.2 moved to Alaska in 1997 with Beth, Frank  Jr.,

Brianna, and Zale, Franks son from a previous marriage.

          In  November  2000  Frank and  Ann  were  arrested  for

operating  a  methamphetamine lab, and Frank pled no  contest  to

misconduct involving a controlled substance in the fourth  degree

for  possession  of  methamphetamine.  He was sentenced  to  four

years, with nineteen months to serve.

          Following  the  arrest, the state took custody  of  the

children  at issue in this appeal, while Zale went to  live  with

his  biological mother.  Shortly thereafter, Beth, Frank Jr., and

Brianna began living with Diane P., who is Franks mother.   Diane

has  already adopted Cathy P., another of Franks children,  after

Franks parental rights to her were terminated.  Diane will  adopt

Beth,  Frank  Jr.,  and  Brianna if Franks  parental  rights  are

terminated.  Shortly after Franks incarceration the state created

a  case  plan for him which focused on substance abuse treatment,

parenting classes, and family violence classes that could only be

taken  after  his release from incarceration.  The original  case

plan  did not include any reference to programs available at  the

prison  at  which Frank was housed, but Frank took  advantage  of

some  of  the  anger management classes, parenting  classes,  and

Alcoholics  Anonymous/Narcotics Anonymous meetings  available  at

the prison.

     B.   Proceedings

          On  February  27, 2001 the state filed  a  petition  to

terminate Franks parental rights to Beth, Frank Jr., and Brianna.

Frank  stipulated that the children were children in need of  aid

          but contested the termination of his parental rights.  After

proceeding  with  part of the termination trial,  Superior  Court

Judge  Eric Smith issued an order on June 6, 2001 continuing  the

trial  until after Franks scheduled release from prison  so  that

Frank  would have an opportunity to resolve his problems and  get

his children back by completing his case plan.

          Frank  was  scheduled  to be released  from  prison  in

November  2001, but was not released because he was indicted  for

sexual  abuse  of  his daughters Cathy and Beth.   This  made  it

impossible for him to comply with the case plan within the  given

time.   Following Franks indictment, the state revised  his  case

plan to include more treatment options during his time in prison.

Frank was convicted of sexual abuse of Cathy and attempted sexual

abuse  of Beth and sentenced to fourteen years, with twelve years

to  serve.   His  sentence includes ten years of  probation,  one

condition of which is that he have no contact with persons  under

the  age  of  eighteen  without the  written  permission  of  his

probation  officer.  He will be eligible for release in  November

2009, at which point his children would be fourteen, twelve,  and

ten  years old.  Frank appealed his conviction on July 18,  2002;

at  this time the parties are still awaiting the transcript  from

his trial.

          On  July 17, 2002 the superior court terminated  Franks

parental  rights to Beth, Frank Jr., and Brianna.   The  superior

court   based  its  decision  on  two  independent  grounds   for

termination, AS 47.10.080(o)3 and 47.10.088.4  Frank appeals  the

superior  courts findings regarding elements of both grounds  for

termination.   He  appeals the courts decision  to  proceed  with

termination of his parental rights prior to the resolution of his

merit  appeal  of his conviction for sexual abuse  and  attempted

sexual  abuse.   He  argues  that his  conviction  and  scheduled

incarceration were essential to termination under AS 47.10.080(o)

and  formed one of several bases for termination under 47.10.088.

Frank  also appeals the termination of his parental rights  under

          AS 47.10.088, arguing that the superior court erred in finding

that  the  state made reasonable efforts to reunify him  and  his

children, and in its consideration of the best interests  of  his

children.

III. STANDARD OF REVIEW

          We  apply the clearly erroneous standard when reviewing

the  factual  findings supporting the termination  of  a  parents

right to raise his or her children.5  We determine that a finding

is clearly erroneous when a review of the entire record leaves us

with  a definite and firm conviction that the superior court  has

made  a  mistake. 6  In determining whether a finding is  clearly

erroneous,  we view the evidence in the light most  favorable  to

the party prevailing below.7

          We  review whether the superior courts findings comport

with the requirements of the CINA statutes and rules under the de

novo standard of review.8  Under this standard, we adopt the rule

of law that is most persuasive in light of precedent, reason, and

policy.9

IV.  DISCUSSION

          The  superior  court terminated Franks parental  rights

under  both  AS  47.10.088  and  AS 47.10.080(o),  which  provide

alternate  and independent bases for the termination.   In  order

for  Frank  to  prevail  we  must find that  termination  of  his

parental  rights  was  improper under both of  these  independent

justifications.  We decline to reach the question  of  whether  a

parents  conviction can be used to terminate his or her  parental

rights  under  AS  47.10.080(o) before  an  appellate  court  has

reviewed  and affirmed the conviction, because we find  that  the

superior court did not err by terminating Franks parental  rights

under  AS  47.10.088.10   We turn now to  consideration  of  that

statute.

          Alaska Statute 47.10.088 sets out the procedural  steps

involved  in  a termination of parental rights.  It  provides  in

relevant part that:

          (a)  Except  as  provided in AS 47.10.080(o),
          the rights and responsibilities of the parent
          regarding  the  child may be  terminated  for
          purposes  of freeing a child for adoption  or
          other permanent placement if the court finds
               (1)  by  clear  and convincing  evidence
          that
                    (A) the child has been subjected to
          conduct   or  conditions  described   in   AS
          47.10.011; and
                    (B) the parent
                         (i)   has  not  remedied   the
          conduct or conditions in the home that  place
          the child at substantial risk of harm; or
                         (ii)  has  failed,  within   a
          reasonable  time, to remedy  the  conduct  or
          conditions in the home that palace the  child
          in  substantial  risk so that  returning  the
          child to the parent would place the child  at
          substantial  risk  of  physical   or   mental
          injury; and
               (2)  by  preponderance of  the  evidence
          that  the  department has complied  with  the
          provisions   of   AS   47.10.086   concerning
          reasonable efforts.
          . . .
          (c)   In  a  proceeding  under  this  chapter
          involving  termination of the parental  right
          of  a  parent,  the court shall consider  the
          best interests of the child.
          
Frank  challenges two aspects of the termination of his  parental

rights  under  AS  47.10.088:  whether the state made  reasonable

efforts  to  reunite him and his children in accordance  with  AS

47.10.088(a)(2),   and  whether  the  superior   court   properly

considered  his  childrens best interests in accordance  with  AS

47.10.088(c).

     A.   The Superior Court Did Not Err in Holding that the State Met
          Its Duty To Make Reasonable Efforts To Reunite Frank and his
          Children Under AS 47.10.086.
          
          Frank   first   asserts   that  the   superior   courts
termination  of his parental rights under AS 47.10.088(a)(2)  was
improper  because the state failed to prove that it had  complied
with  the requirements of AS 47.10.086(a), which establishes  the
states  duty  to  make reasonable efforts to provide  Frank  with
services designed to reunify him with his children.11
          The  superior court found that the requirements  of  AS

47.10.086  had  been  met  because:  (1)  Franks  conviction  for

          attempted sexual abuse of Beth made reunification efforts

unnecessary  under  AS. 47.10.086(c)(1),12  (2)  the  length  and

conditions  of  Franks  sentencing for the  sexual  assault  made

reunification efforts unnecessary under AS 47.10.086(c)(10),13 and

(3)  in  any  event,  the  state did make reasonable  efforts  to

reunify  Frank and his children.  Frank challenges all  three  of

these  bases,  any of which is a sufficient basis upon  which  to

conclude  that the state met the reasonable efforts  requirement.

Because we find that the state made reasonable efforts to reunify

Frank  and  his  children in accordance with AS 47.10.086(a),  we

decline to address Franks claims that the superior court erred by

holding  that  the state was exempted from its responsibility  to

provide   such   efforts   by   AS   47.10.086(c)(1)    and    AS

47.10.086(c)(10).

          Frank  challenges Judge Smiths finding that  the  state

met  its  obligation to make reasonable efforts  to  reunite  the

family.   The court found that [e]ven if reasonable efforts  were

required,  the department made those efforts, at least  prior  to

[Franks]  sexual abuse conviction.  It based this  conclusion  on

its  finding  that  the  state prepared  a  case  plan  requiring

treatment  of  the  substance abuse and anger management  issues.

[Frank] was afforded access to a number of programs while he  was

incarcerated.  In short, the department did what it could,  given

the constraints placed by the fact that [Frank] was incarcerated.

Frank  alleges  that  the state failed to  identify  services  in

accordance  with AS 47.10.086(a)(1) and to actively  offer  those

services  in  accordance with AS 47.10.086(a)(2), and  that  this

failure  made  the superior courts finding that  the  state  made

reasonable  efforts  toward reunifying  Frank  and  his  children

clearly erroneous.14

          The states efforts to provide the services mandated  by

AS 47.10.086(a) is broken down by the parties into two periods of

time.    The  first  of  these  is  the  period  between   Franks

incarceration   for  methamphetamine  possession  following   his

          November 2000 arrest and his indictment for sexual abuse, as the

indictment  postponed his anticipated November 2001 release  from

prison for the methamphetamine offense.  The second period is the

time  between his indictment for sexual abuse and the termination

of his parental rights on July 17, 2002.

          Frank contends that Dr. Lindeman, a social worker  with

the  Department of Health and Social Services, Division of Family

and Youth Services (DFYS), who was responsible for fulfilling the

states duty to identify reunification services in accordance with

AS  47.10.086(a)(1),  made little or no effort  to  identify  and

learn about treatment options available in Franks prison prior to

Franks  indictment for sexual abuse.  He argues that the superior

court  erred  by finding that the reasonable efforts  requirement

had  been  satisfied, and that its termination  of  his  parental

rights  should be reversed because of this failure.   Frank  next

contends  that the state violated AS 47.10.086(a)(2)s requirement

that  it  actively  offer  the parent services  identified  under

subsection  (1).  Frank argues that AS 47.10.086(a)(2) require[s]

at  a  minimum  that  DFYS  communicate  with  the  parent  in  a

meaningful  way the specific services available, and  inform  the

parent  how  those services will help.  Also, DFYS should  inform

how  the  parent  can avail himself of those services.   In  sum,

Frank  argues that the state attempted to terminate his  parental

rights  without giving him an opportunity to remedy  the  conduct

that caused his children to be in need of aid.

          The  state  fails  to  respond  effectively  to  Franks

argument that its original case plan was inadequate.  It  appears

to  recognize  that  it did not identify or  actively  offer  any

programs  to  Frank during his incarceration for  methamphetamine

possession  in  the  form  of an organized  case  plan  aimed  at

reunifying  Frank  and his children.  Indeed, the  original  case

plan  for  the  time  in  which Frank  was  incarcerated  focused

exclusively  on  services  that were  available  only  after  his

release from prison in November 2001, whereas the state attempted

to  terminate  Franks  parental  rights  before  his  anticipated

November  2001  release  by  filing  its  petition  to  terminate

parental  rights on February 27, 2001 and arguing  for  immediate

termination at the June 2001 termination trial.  (In fairness  to

the  state, its original case plan was formulated at a time  when

it  was assumed that Frank would be released from prison in  less

than  two  years.   His subsequent indictment  for  sexual  abuse

dramatically altered that expectation.)  The state argues that it

fulfilled  it obligation to identify and actively offer  services

to  Frank  because  the  prison  staff  publicized  the  programs

available to Frank while he was incarcerated.

          But  the  test  of  whether the state  made  reasonable

efforts to reunify Frank and his children is not limited to  this

particular  segment  of time.  Instead, we  examine  whether  the

states  reunification efforts, when looked at in their  entirety,

satisfy the requirements of AS 47.10.086(a).

          Though  the  states  failure  to  identify  and   offer

programs  to Frank before the planned termination would generally

violate  the  states  duty under AS 47.10.086,  the  failure  was

harmless  in  this case because the superior court continued  the

June  6,  2001 termination trial specifically to allow  Frank  an

opportunity to complete his case plan.  The post-release  portion

of  the original case plan fulfilled AS 47.10.086(a)(1) and  (2)s

requirement  that  the  state identify  and  offer  reunification

services  to  Frank,  as it called for Frank to  enter  inpatient

substance  abuse treatment, attend Alcoholics Anonymous/Narcotics

Anonymous  (AA/NA),  and attend parenting classes.   Contrary  to

Franks   suggestion,  the  requirement  that  the   state   offer

reunification services is fulfilled by setting out the  types  of

services that a parent should avail himself or herself  of  in  a

manner  that allows the parent to utilize the services.  In  this

case, the above services were reasonably offered to Frank because

the  case plan identified them in a manner that allowed Frank  to

attend  appropriate  AA/NA meetings and apply  to  at  least  two

appropriate inpatient substance abuse treatment programs.

          The  superior  court  ensured  that  Frank  would  have

meaningful  access  to  these properly  identified  reunification

services that were offered to Frank by continuing the termination

trial  until  January  22,  2002  in  order  to  give  Frank  the

opportunity  to complete the post-release services  specified  in

his  case  plan.   As the superior court stated, the  continuance

will  give  the  court  concrete information  regarding  [Franks]

ability  and  desire  to remedy the conditions  that  placed  his

children  so  badly  at  risk, and will give  him  the  necessary

reasonable  time  in which to do so.  By providing  a  reasonable

opportunity  for  Frank to remedy the behavior  that  caused  his

children  to be in need of aid, the continuance cured the  states

attempt to terminate Franks parental rights without providing him

with  the  reasonable  efforts to reunify him  and  his  children

mandated by AS 47.10.086(a).15

          Finally, we examine the states efforts to identify  and

offer programs to Frank after his original case plan was rendered

moot  when  his  incarceration was extended past  the  originally

scheduled  November 2001 release date due to his prosecution  for

sexual  abuse.  Though Frank does not focus on this stage of  the

proceedings,  several of his arguments attack the sufficiency  of

the  states  efforts  to  identify and offer  services  aimed  at

reunifying  him and his children.  He argues that  Dr.  Lindemans

efforts  to identify services after the state filed its  petition

to  terminate  Franks parental rights were perfunctory  at  best.

The state contends that it properly identified plans available in

prison  when  it became apparent that Frank would  be  imprisoned

past his expected November 2001 release date.

          Just as we held that the original case plan as extended

by  the  court  offered reunification services in a  manner  that

allowed  Frank to avail himself of them, we hold that the revised

case  plan  satisfied the requirements of AS 47.10.086(a),  after

the  original  extended case plan was made irrelevant  by  Franks

          continued incarceration.16  Dr. Lindeman testified to the November

2001  changes  in  the  case plan, stating that  when  it  became

evident  that  the incarceration was going to extend  beyond  the

November time period, then a treatment plan was drafted up  which

was  modified  to reflect both while he was in incarceration  and

while  he  was out of incarceration.  The inclusion  of  services

available in prison is also seen in the revised case plan, which,

in  contrast  to  previous plans, provided that [w]hile  awaiting

release  from jail he will participate in any groups  offered  in

jail  in  the  areas  of  anger management,  substance  abuse  or

psychotherapy.  Furthermore, though Frank argues that termination

was improper because the state did not take a more active role in

recommending specific services, he does not contend that  he  was

unable to identify the services available in the specified areas,

and in fact demonstrated the ability to do so by taking advantage

of  an  anger  management  class during  his  incarceration.   We

therefore  hold that the states identification of specific  areas

of  reunification services is a sufficient basis for  the  courts

finding that [t]he Department . . . met its burden to prove by  a

preponderance  of  the evidence that it had made  the  reasonable

efforts required by AS 47.10.086.

     B.   The Superior Court Did Not Err in Finding that Termination
          of Franks Parental Rights Was in the Childrens Best Interests.
          
          A.   Alaska Statute 47.10.088(c) mandates that [i]n a proceeding

under this chapter involving termination of the parental right of

a  parent,  the  court shall consider the best interests  of  the

child.   Frank  contends that the superior  courts  finding  that

immediate termination of his parental rights was in the childrens

best interests was clearly erroneous because delaying termination

until the resolution of his appeal from his conviction for sexual

abuse and attempted sexual abuse is in the best interests of  his

children.   Frank  claims  that his  children  would  not  suffer

significant harm from the delay in permanency caused  by  waiting

for the resolution of his criminal appeal because their placement

with  Diane  would be unaffected.  He also argues that  immediate

          termination is not in the childrens best interests because they

might  be  harmed by the possible overturning of  their  adoption

under Alaska Civil Rule 60(b)(5).17  But these possibilities  are

insufficient to overturn the superior courts factual finding,  as

we  will  overturn  factual findings only when they  are  clearly

erroneous.18

          The  state points to the testimony of Dr. Lindeman, who

testified that the state decided to move for termination  because

the necessity to get [the children] stability and to maintain the

consistency of stability was very paramount.  Frank responds that

Dr. Lindemans testimony established that the children are already

well-bonded  with their grandmother, and that this  supports  his

contention that little benefit is gained by freeing the  children

for  adoption  because they will maintain the  current  placement

with  his  mother regardless of whether they are adopted.   After

hearing Dr. Lindemans testimony, the superior court found on June

6,  2001  that the children are quite young and . . .  it  is  in

their  best  interests to have some finality in their lives  with

respect  to  who  actually  will be  their  parent.   Though  the

superior court did not terminate Franks parental rights  at  that

time,  its finding that an additional delay of seven months  will

not so adversely affect the children that the trial, and hence  a

decision  on  the  Departments  petition,  cannot  be  continued,

recognized that finality at some point was an important aspect of

the childrens best interests.19  This finding that finality was in

the  childrens  best interests was not clearly erroneous,  and  a

review  of  Dr.  Lindemans testimony does not leave  us   with  a

definite and firm conviction that the superior court has  made  a

mistake. 20

          The  superior  court then applied this finding  in  its

July  17,  2002  order terminating Franks parental  rights.   The

court found that termination of Franks parental rights was proper

because:

          The    children   are   living   with   their
          grandmother, who wishes to adopt them.  Their
          father  will  be in jail for  most  of  their
          childhood.  They need the permanency promised
          by adoption, not the uncertainty imposed by a
          possible   reunion   with   a   father   with
          significant untreated problems whom they will
          not  see for years.  It is absolutely not  in
          their  interest to have to wait  those  years
          for this matter to be resolved.  They need to
          be   able   to  get  on  with  their   lives;
          termination  of [Franks] rights and  adoption
          by  their grandmother will enable them to  do
          so.
          
While  this finding that immediate termination of Franks parental

rights  is  at least partially based on an assumption that  Frank

will not win his criminal appeal, it also clearly recognizes that

a delay of years in providing the children with finality in their

parental situation is not in their best interests.  The delay and

resulting  harm  to the children occasioned by  criminal  appeals

that  will  take years is real.  This finding of  harm  is  amply

supported in Dr. Lindemans testimony regarding the importance  of

providing  the  children  with  stability;  it  is  not   clearly

erroneous.   We  hold  that the superior court  did  not  err  by

finding  that termination of Franks parental rights  was  in  the

childrens best interests.

V.   CONCLUSION

          A.   Because the superior court did not err in determining that

the  state  provided reasonable efforts aimed at  reunifying  the

father  and  his children or in finding that termination  of  the

fathers  parental  rights  was  in  the  best  interests  of  his

children, we  AFFIRM the decision of the superior court.

MATTHEWS, Justice, concurring.

          When  a parent has been sentenced to a prison term that

constitutes much of the minority of the parents children, efforts

to  provide  social  services to the parent that  have  as  their

objective  reunification  of the parent  with  the  children  are

necessarily futile.  Because such efforts cannot succeed,  it  is

difficult  to describe them as timely and reasonable,  the  terms

used in AS 47.10.086(a).  But the legislature has recognized this

problem  and  does not require family reunification efforts  when

the  incarceration that the parent is scheduled to  serve  during

the childs minority is significant considering the childs age and

the  childs  need  for  an  adults  care  and  supervision.    AS

47.10.080(o)(1).  Similarly, under AS 47.10.086(c)(10) the  court

may determine that the reasonable efforts ordinarily required may

be dispensed with under the same circumstances.

          Frank is scheduled to be incarcerated for twelve years,

with an additional ten years of probation during which he is  not

allowed  contact  with  minors.  This obviously  qualifies  as  a

significant period of his childrens minority and the trial  court

so found.  Because this finding is sustainable, the state was not

required to provide reunification services to Frank and there  is

no  need to consider whether the services that the state afforded

Frank were reasonable and timely.  I would affirm the judgment of

the superior court on this basis.

          Frank  argues that it is unfair to waive the reasonable

efforts  requirement  based  on  AS  47.10.086(c)(10)  until  his

criminal  appeal has been decided.  In my opinion  this  argument

lacks  merit.  A conviction is a judgment and as such it is final

when  it  is  entered  in the superior court.   Both  direct  and

collateral  consequences may be imposed based on  the  conviction

regardless of the pendency of an appeal:  We have repeatedly held

that the pendency of an appeal is irrelevant for the purposes  of

res  judicata  and  collateral estoppel.1  In A.A.  v.  State  we

recognized  the risks of relying on a conviction pending  appeal,

          but stated that a trial court should have the discretion to

proceed  to  a  termination trial without a  final  ruling  on  a

parents criminal appeal.2  This statement applies here.

          It   is   of   course  possible  that  Franks  criminal

conviction  might be reversed on appeal.  Speaking statistically,

the  chances  are slim.  According to the clerk of  court,  about

eighty-two  percent of criminal appeals were totally affirmed  by

the  Alaska Court of Appeals over the last fiscal year.  A number

of  cases in the opposite eighteen percent column were vacated or

reversed  only  in part and did not result in a reversal  of  the

conviction   on   the  most  serious  charges.    Further,   when

convictions  on  major  charges are  reversed,  the  charges  are

ordinarily  retried, and the offender is often reconvicted.   For

those rare cases in which an offender is ultimately acquitted  of

major  charges,  Civil Rule 60(b)(5) offers  the  possibility  of

relief from a termination judgment that has been entered based on

the conviction.

          As this case illustrates, the appellate process is time

consuming.3   It is now statutory policy that young  children  be

expeditiously  placed into permanent homes.4  If  the  waiver  of

reunification provisions contained in AS 47.10.080(o)(1)  and  AS

47.10.086(c)(10)  are to be given effect consistent  with  todays

expedited permanent placement policy, a final criminal conviction

in  the superior court should be the event that triggers a waiver

rather than a decision of the court of appeals.

          Because  the  superior court properly  found  that  the
reasonable  efforts requirement did not apply because  of  Franks
significant  incarceration, and because I agree with the  opinion
of  the  court that the superior court did not err when it  found
that the termination was in the best interests of the children, I
agree that the termination judgment should be affirmed.
_______________________________
     1     We  use  pseudonyms to protect the  privacy  of  those
involved.

     2     Ann  is  the mother of the three children involved  in
this  case.   She has already had her parental rights  terminated
and is not the subject of this appeal.

     3    AS 47.10.080(o) provides:

          For   purposes  of  terminating   a   parents
          parental rights under the standards in (c)(3)
          of this section, the court may determine that
          incarceration  of  the parent  is  sufficient
          grounds  for determining that a  child  is  a
          child in need of aid under AS 47.10.011 as  a
          result  of  parental  conduct  and  that  the
          parental  rights  of the incarcerated  parent
          should  be  terminated if  the  court  finds,
          based on clear and convincing evidence, that
               (1) the period of incarceration that the
          parent  is  scheduled  to  serve  during  the
          childs  minority  is significant  considering
          the  childs  age and the childs need  for  an
          adults care and supervision;
               (2)  there is not another parent willing
          and able to care for the child; and
               (3)  the incarcerated parent has  failed
          to  make adequate provisions for care of  the
          child during the period of incarceration that
          will be during the childs minority.
          
This  statute was added in 1996 to respond to the Alaska  Supreme
Courts  invitation  in  A.M. v. State of  Alaska,  891  P.2d  815
(Alaska  1995)  and  Nada A. v. State of  Alaska,  660  P.2d  436
(Alaska   1983)   to   create  a  statutory  basis   for   making
incarceration  a  factor  that can be considered  in  termination
proceedings concerning children in need of aid.  Ch. 89,  1,  SLA
1996.

     4     AS 47.10.088 generally prescribes the findings that  a
court  must make before terminating parental rights.   The  court
must find that a child is in need of aid under AS 47.10.011, that
the  parent  has not remedied the situation, that the state  made
reasonable efforts to provide family support services  so  as  to
avoid  out-of-home placement or to safely return the  child  home
under AS 47.10.086, and that termination is in the best interests
of the child.

     5     G.C.  v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003).

     6     Id. at 650-51 (quoting S.H. v. State, Dept of Health &
Soc.  Servs., Div. of Family & Youth Servs., 42 P.3d  1119,  1122
(Alaska 2002)).

     7     In  re J.L.F. & K.W.F., 828 P.2d 166, 170 n.12 (Alaska
1992)  overruled on other grounds by In re S.A.,  912  P.2d  1235
(Alaska 1996).

     8     P.M.  v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 42 P.3d 1127, 1130 (Alaska 2002).

     9    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     10     We  decline  to  decide this issue for  two  reasons:
First,  our  affirmance of termination under AS  47.10.088  makes
consideration of termination under AS 47.10.080(o) moot.  Second,
Frank  fails  to  adequately brief the  potential  constitutional
issues  involved  in  terminating  parental  rights  based  on  a
conviction when that conviction has not been affirmed on  appeal.
See,  e.g.,  Martinson v. ARCO Alaska, Inc., 989  P.2d  733,  737
(Alaska 1999).

     11    AS 47.10.086(a) provides, in relevant part, that

          the  department shall make timely, reasonable
          efforts to provide family support services to
          the  child and to the parents or guardian  of
          the  child that are designed to . . .  enable
          the  safe  return of the child to the  family
          home,  when appropriate . . . The departments
          duty  to  make reasonable efforts under  this
          subsection includes the duty to
               (1)  identify  family  support  services
          that  will  assist the parent or guardian  in
          remedying  the conduct or conditions  in  the
          home  that made the child a child in need  of
          aid;
                  (2)  actively  offer  the  parent  or
          guardian,  and refer the parent  or  guardian
          to, the services identified under (1) of this
          subsection;  the department shall  refer  the
          parent  or guardian to community-based family
          support   services  whenever  community-based
          services  are  available and desired  by  the
          parent or guardian; and
                 (3)  document the departments  actions
          that  are  taken under (1) and  (2)  of  this
          subsection.
          
     12    AS 47.10.086(c) provides, in relevant part:

          The   court  may  determine  that  reasonable
          efforts of the type described in (a) of  this
          section  are  not required if the  court  has
          found by a preponderance of the evidence that
               (1) the parent or guardian has subjected
          the  child  to  circumstances  that  pose   a
          substantial  risk  to the  childs  health  or
          safety;     these    circumstances    include
          abandonment,  sexual abuse, torture,  chronic
          mental injury, or chronic physical harm[.]
          
     13    AS 47.10.086(c) provides, in relevant part:

          The   court  may  determine  that  reasonable
          efforts of the type described in (a) of  this
          section  are  not required if the  court  has
          found by a preponderance of the evidence that
          . . .
               (10)   the   parent   or   guardian   is
          incarcerated and is unavailable to  care  for
          the  child during a significant period of the
          childs  minority, considering the childs  age
          and need for care by an adult.
          
     14    Frank also contends that the state failed to satisfy AS
47.10.086(a)(3)s  mandate  to  document  its  actions  under   AS
47.10.086(a)(1)-(2).  But he fails to make  any  argument,  other
than  that  implied  by his argument that  the  state  failed  to
identify and offer services to him, concerning the states alleged
failure.   Because  [w]e will not consider  arguments  which  are
inadequately briefed on appeal, we hold that Frank has waived any
consideration of the adequacy of the states documentation of  its
efforts in its case plan.  Martinson, 989 P.2d at 737.

     15    The parties also dispute the adequacy of visitation in
this  case,  but  visitation was properly  discontinued  for  the
majority  of Franks incarceration because of credible allegations
of  sexual  abuse  against  Frank  and  because  Diane  moved  to
California with the children.

     16     Frank does not contend that reasonable efforts should
have  been provided to him after his convictions for sexual abuse
of Cathy and attempted sexual abuse of Beth.

     17     Alaska R. Civ. P. 60(b)(5) provides that a court  may
relieve a party from a final judgment when a prior judgment  upon
which  it is based has been reversed or otherwise vacated, or  it
is  no longer equitable that the judgment should have prospective
application.   Frank  argues  that,  should  his  conviction   be
overturned  on appeal, he would be able to attack the termination
of his parental rights under this rule.  We express no opinion as
to  whether  a  termination of parental rights can be  overturned
under Rule 60(b)(5).

     18     G.C. v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003).

     19    Franks argument that the superior courts July 17, 2002
termination  of his parental rights should be overturned  because
it  is  inconsistent with its June 6, 2001 finding that a  seven-
month delay was in the childrens best interests is without merit.
The June 6, 2001 order weighed the ongoing harm caused by a seven-
month  delay  in  determining  that  Frank  should  be  given  an
opportunity  to  remedy  his  problems.   That  finding  is   not
inconsistent with a later finding that an additional,  much  more
significant  delay, until the resolution of his criminal  appeal,
would be harmful.

     20    G.C., 67 P.3d at 650-51 (quoting S.H. v. State, Dept of
Health  &  Soc.  Servs., Div. of Family & Youth Servs.,  42  P.3d
1119, 1122 (Alaska 2002)).

1    Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003).

     2    982 P.2d 256, 260 (Alaska 1999).

     3     We are advised that Franks criminal appeal has not yet
been briefed.

     4     AS 47.05.065(5); see S.H. v. State, 42 P.3d 1119, 1125
(Alaska 2002) (The timeliness of a permanent stable placement for
the children is paramount . . . .).